About this case:

• Citation:
  [2023] IECA 118
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Delivering judgment in the case, Mr Justice Seamus Noonan held that the trial judge was justified to infer the presence of the fluid on the plane having regard to the evidence as a whole. Further, the trial judge was correct to not allow Ryanair to adduce evidence about a daa clean-up operation as it was not properly pleaded in the defence, the court held.

Background

The plaintiff was a flight attendant who worked with Ryanair. In February 2018 at 9.30am, she was on an aircraft which was departing Dublin and bound for Warsaw. The plane had previously flown to and from Birmingham that morning with the same crew.

It was a cold, breezy day in Dublin and the temperature was around the freezing point. At 4.35am, the airport staff had carried out a de-icing operation on the plane. The plane beside the Ryanair aircraft was de-iced at 5.25am.

As the plane took off for Warsaw, the plaintiff was seated at the front of the plane in the rear-facing “jump seats”. The plaintiff got out of her seat when the pilot gave the “release” signal to tend to the passengers. The plaintiff moved from a mat to a vinyl surface which was nine inches wide.

As she placed her foot on the vinyl surface, she slipped and fell to the ground. She struck her right arm violently and suffered a displaced spiral fracture. The plaintiff issued personal injuries proceedings against Ryanair, alleging that she had fallen due to de-icing fluid on the vinyl surface.

It was established that three other incidents involving slips on de-icing fluid had occurred between December 2017 and January 2018. On the day after the plaintiff’s accident, an advisory notice was issued to staff reminding them to be vigilant for the presence of de-icing fluid tracked onto the plane by passengers and staff. A similar notice had been sent the previous winter.

While the plaintiff accepted that nothing could be seen on the floor after the accident, she insisted that there was no water and the only other thing that could be tracked onto the plane by passengers was de-icing fluid.

The plaintiff’s expert outlined that de-icing fluid was 75 per cent water and 25 per cent propylene glycol. When dried out, it left a greasy film on a surface. The expert noted that Ryanair’s risk assessments did not address the risk of de-icing fluid being brought on the plane.

During cross-examination, counsel for Ryanair attempted to ask questions about daa operating a clean-up procedure for the de-icing fluid. However, this was objected to by the plaintiff’s counsel. The trial judge agreed that this was not a matter that had been properly pleaded.

The defendant argued that it would have to amend its defence, which the plaintiff objected to on the grounds that the trial would have to be adjourned and new parties would have to be joined. The judge refused to allow the line of questioning and directed the trial to proceed.

The defendant went on to lead evidence that the de-icing fluid would evaporate and dry into a powder within an hour.

The High Court found in favour of the plaintiff and awarded €70,000 in general damages and €24,000 in special damages. The court preferred the plaintiff’s evidence that the fluid (whether a powder or liquid) created a thin greasy film on a surface and that there was a real risk of it being tracked onto a plane by passengers.

It was also held that Ryanair should have sent a warning about the risks of de-icing fluid before the plaintiff was injured and the issuing of warnings in previous winters were not sufficient.

Court of Appeal

Ryanair appealed on a number of grounds. It was said that the judge interjected excessively to the prejudice of the defendant, that the judge was wrong to rule out the evidence of the daa cleaning operation, that the judge was wrong to accept the presence of de-icing fluid on the floor and that damages were excessive.

The plaintiff cross-appealed on the issue of quantum and on the ground that Ryanair’s duty was limited to warning about the risks of de-icing fluid. Instead, she argued that the defendant owed a duty to take appropriate steps to address the hazard.

Dealing first with the presence of the fluid, Mr Justice Noonan held that this was a finding of fact supported by credible evidence and the court would not interfere with it (see Hay v. O’Grady). The defendant was incorrect that there was no evidence of the de-icing fluid being present.

Instead, the real complaint was that the defendant’s evidence was not preferred to the plaintiff’s. The trial judge was entitled to prefer the plaintiff’s expert evidence which was based on the manufacturer’s information about the fluid. There was also undisputed evidence that the fluid was a hazard in three other accidents.

The mere fact that the plaintiff could not identify the substance on the floor without doubt did not disentitle the judge to infer the presence of de-icing fluid having regard to the evidence as a whole (see Whelan v. Dunnes Stores [2022] IEHC 133).

Turning to the evidence of the clean-up, the court held that this “came as a bolt out of the blue to the plaintiff” and the trial judge was correct that it was not properly pleaded by the defendant (see Crean v Harty [2020] IECA 364; Morgan v ESB [2021] IECA 29). Similarly, no discovery had been made and the defendant’s expert had not been instructed on the matter.

The court held that the “half-hearted” application to amend the defence “on the spot” was not satisfactory. It was held that an adjournment had to be sought by the defendant to bring a motion to amend, although this would certainly have involved significant costs orders made against Ryanair.

In the event, no application to adjourn was made and therefore the ground of appeal was “wholly unmeritorious”.

Considering the interjections by the judge, Mr Justice Noonan held that the judge was very proactive in the matter, but at no point was counsel precluded from asking questions on pleaded matters. No particular prejudice was identified by Ryanair and no objection was taken during the trial to the interventions. A judge was not expected to “stay mute and maintain a lofty silence”, the court said.

On the cross-appeal, it was held that the evidence fell short of establishing that there was a resulting step that the defendant ought to have taken. As such, the trial judge was not in error on this issue.

Conclusions

Finally, the court assessed quantum. It was noted that the plaintiff’s injuries were to be assessed under the Book of Quantum. Having considered the evidence, the court was satisfied that the trial judge had correctly compensated the plaintiff for her injuries and there was no error of law which the court may recalculate damages (see Rossiter v Dun Laoghaire County Council [2001] IESC 85).

Accordingly, the defendant’s appeal was dismissed and the €94,000 award was upheld.

Nangle v. Ryanair Designated Activity Company [2023] IECA 118